Kapaklis v Cervara Twenty Four Pty Limited [1995] IRCA 111

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 2512 of 1994

BETWEEN:

KAPAKLIS Applicant

AND

cervara twenty four pty limited Respondent

REASONS FOR JUDGMENT (EX TEMPORE) (Revised from Draft Transcript)

21 March 1995 Judicial Registrar Millane

By an application made on 30 November 1994 the Applicant seeks compensation under Division 3 of Part VIA of the Industrial Relations Act 1988, ("the Act") alleging that on 28 November 1994 his employment was unlawfully terminated.

The Respondent concedes that from 15 November 1994 it employed the Applicant as a shed hand and as a truck driver in its transport business. However, it is contended that such employment was subject to a three month probationary period, determined in advance, and such period was reasonable having regard to the nature and circumstances of the employment.

The Applicant gave evidence that in November 1994 he sent letters to various prospective employers, including the Respondent, seeking employment as a truck driver and labourer or shed hand. The original of such letter was produced by the Respondent and tendered in evidence (exhibit A1). It contains the statement by the Applicant that:

"I would be willing to begin employment with your company at any reasonable wage agreement, as long as the position will or can lead to a full-time permanent one."

It was conceded by the Applicant that during an interview with Mr Di Pietro, the Respondent's managing director, he was informed that his employment would be the subject of a three month period of probation. The Respondent tendered in evidence exhibit R1, a document entitled Individual Employment Agreement, the front page of which was signed by the Applicant and dated 14 November 1994. The Applicant agreed that he had signed that document as alleged, but could not recall the circumstances under which it was signed and whether it had attached to it two further pages setting out leave entitlements and definitions and conditions.